Digital Assets and Your Estate

Q: My husband and I have a living trust prepared in the state of Montana. Our family moved to Orlando a year ago. In a discussion with one of our neighbors, they told us that they, too, have a trust and just recently amended it to include digital assets. Our attorney in Montana made no mention of including such assets in our trust nor could I find that Montana even has such laws. Does Florida currently have any laws regarding digital assets? Should my husband and I consult with an attorney to amend our family trust for Florida and perhaps include language regarding digital assets?

A: On July 1, 2016, the Fiduciary Access To Digital Assets Act became effective in Florida. The law establishes a process for allowing your executor, trustee, attorney-in-fact or court-appointed conservator to access your online accounts after your death. This act also allows you to designate portions of your account as off-limits after your death. Currently, Florida is one of 29 states that have created laws that will protect people’s digital assets and give your successor trustees the right to access and manage those accounts after you die.

Although trusts are typically accepted in all 50 states within the U.S., if you move to Florida and have a trust prepared in another state, you should visit with a Florida attorney to determine if your estate documents are compliant with Florida’s estate and trust statutes. It is wise to include provisions in your trust for all assets including digital assets.

What do you do if you’re not in a state or jurisdiction with protective laws? How does someone get access to your electronic banking and investments, Facebook, Instagram, LinkedIn, Twitter, iTunes and family websites when you die? In the absence of protective legislation, those accounts or assets are governed by the terms of the provider’s service agreement when the account was opened. Under these agreements, family members would need confidential identification information and passwords.

According to recent studies, the average person has roughly $25,000 or more worth of assets stored on digital devices. That value includes purchased movies, books, music and games as well as personal memories, communications, personal records, hobbies and career information. Of those surveyed, 55 percent said they store assets that would be impossible to recreate, re-download or repurchase.

Today’s world is becoming increasingly more digital and paperless. Trying to organize and take the time necessary to develop an electronic digital map of all online assets can be exhaustive considering how many times we are routinely asked by the company custodians of those accounts to change or modify our usernames and passwords for security purposes.

Like a safe without a key, rather than just electronically placing digital assets on a flash drive, computer or online where no one may find them after you die, discuss with your estate planning attorney how to include a plan to notify beneficiaries of the existence of and how to access digital assets upon your death.

About the Author

Kristen M. Jackson is the founding partner of Jackson Law PA (407-363-9020). She is experienced in estate planning, real estate law, business and contract law. Her firm has earned an AV rating by Martindale-Hubbell signifying the highest level of personal excellence as obtained through opinions from members of the bar and judiciary.